Last week, we reported on a church/state controversy at the Kountze Middle School, where the school's administration banned cheerleaders from displaying Christian banners on the field during football games. Someone from the community complained about these overt religious displays and the Freedom From Religion Foundation (FFRF) wrote a letter to the school advising it that government endorsed displays of religion were unconstitutional. Fans could continue to display religious signage in the bleachers and off-field. However, a judge in Beaumont, Texas, issued a temporary restraining order against the ban, meaning that until the case is decided, cheerleaders may continue with their religious displays.
There has not been a hearing yet, but Texas Attorney General Greg Abbott decided to jump in the action by writing a letter to the Kountze Independent School District. In his September 27 letter, Abbott wrote:
I write to offer my assistance and to provide advice about a menacing and misleading letter you recently received from an organization called the Freedom From Religion Foundation (FFRF). That organization has a long history of attempting to bully school districts into adopting restrictive religious speech policies that go well beyond what is required by the United States Constitution. Consistent with that history, the letter you received incorrectly claims that allowing Kountze High School cheerleaders to display banners decorated with Bible verses at football games amounts to a “serious and flagrant violation of the First Amendment.” That exaggerated claim is not supported by the Constitution. Instead, it is based solely on FFRF’s distorted, anti-religion view of the First Amendment, a view that is unsupported by court precedent and has recently been rejected by the Fifth U.S. Circuit Court of Appeals.
It appears that your recent decision to prohibit the cheerleaders at Kountze High from displaying their religious messages at football games—a decision that has since been blocked by a court order—was based on a mistaken belief that FFRF’s letter correctly interprets the law. Unfortunately, that mistaken belief was apparently reinforced by erroneous advice from the Texas Association of School Boards. Contrary to FFRF’s claims, however, the Supreme Court has never held that it is illegal for a public school to “host religious messages at school athletic events.” And the Supreme Court has never ruled that religion must be “kept out” of public schools. Instead, each of the Supreme Court cases cited in FFRF’s letter involve decisions by public officials to promote a religious message or to direct the content of a private citizen’s religious message. Unlike the cases cited by FFRF. Kountze ISD has neither made the decision to include a religious message on the cheerleaders’ banner. nor provided any direction as to the content of the cheerleaders’ message. Rather, news reports indicate that these decisions were made entirely by students. Those same news reports also indicate that the banners were made by the cheerleaders off of school property and without the use of school funds. That these students chose to express their religious viewpoint at a school function does not violate the Establishment Clause.
When the school district does not join in the students’ religious message or seek to control or direct that message, the cheerleaders’ decision to display their banners cannot constitute promotion or imposition of religion by the school district. Rather, the banners are the religious speech of individual students, which enjoys protection under the Free Speech and Free Exercise Clauses of the First Amendment.
In addition to the protections afforded by the First Amendment. Texas law further protects students free exercise of religion by requiring school districts to “treat a student’s voluntary expression of a religious viewpoint . . . in the same manner the district treats a student’s voluntary expression of a secular or other viewpoint.” TEX. EDUC. CODE § 25.15 1. Moreover, a school district “may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.” Id. To the extent the district seeks to prevent the cheerleaders from displaying their banners because the cheerleaders decided to express a religious—as opposed to a secular—message, it may very’ well violate section 25.1 5 1 of the Texas Education Code.
Think about it: Can a school district or the Freedom From Religion Foundation stop a student from making the sign of the cross before taking a test, or stop football players from pointing toward heaven after scoring a touchdown or kneeling to pray for an injured teammate? Of course not. Just like the cheerleaders’ banners, such public displays of religion are voluntary expressions of the students’ beliefs and are not attributable to the school district.
The Fifth U.S. Circuit Court of Appeals recently vindicated these legal principles—and rejected FFRF’s restrictive view of the First Amendment—in a case involving Medina Valley ISD in Castroville, Texas. In May 2011, a group called Americans United for Separation of Church and State filed a lawsuit against Medina Valley in an attempt to prevent student speakers from praying as part of their speech at their graduation ceremony. My office supported the school district by arguing that the First Amendment does not require public schools to interfere with students’ right to freely express their religious beliefs. A unanimous panel of three federal appeals judges ruled in favor of the school district and permitted Medina Valley High School seniors to pray at their graduation ceremony. The appeals court explained that there was no showing that the “prayers or other remarks to be given by students at graduation are, in fact, school-sponsored.” The same is true here: The cheerleaders are expressing their own beliefs, not those of the school district. Just as Americans United for Separation of Church and State was wrong in Castroville, the Freedom From Religion Foundation is wrong in Kountze.
As the United States Supreme Court has observed, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). And as the Fifth Circuit’s Medina Valley ruling demonstrates, school districts that allow students to speak freely about their religious beliefs have theConstitution on their side. A school district’s policies regarding student expressions of religious belief should be guided by the educational goals of the district and an appropriate respect for students’ freedoms of speech and religion—not by threatening letters that misstate the law and distort the First Amendment.
If you decide to allow the cheerleaders of Kountze High to freely display their chosen message on their banners at football games, and if the Freedom From Religion Foundation or any other group sues Kountze ISD as a result, my office stands ready to file a brief with the court protecting the cheerleaders’ religious liberties.
"Texas Attorney General Greg Abbott has inappropriately weighed in on the wrong side of a Texas state/church controversy involving the Freedom From Religion Foundation," FFRF commented in a news release. ". . . calling FFRF, among other things, 'menacing and misleading' for notifying the district about inappropriate religious promotion by cheerleaders at school events. The violation is bizarre even by Texas standards. As the Beaumont Enterprise put it, 'for three straight weeks, high school football players in a small southeast Texas town took the field by bolting through large red-and-white banners that hollered the praises of Jesus Christ.'"
FFRF explains, "FFRF Staff Attorney Stephanie Schmitt wrote a Sept. 17 letter to Superintendent Kevin Weldon of the Kountze Independent School District, informing him that the practice runs afoul of constitutional principles. Schmitt cited a 2000 Supreme Court decision, involving a Texas case, which nixed formal student-initiated school prayers at sporting events. Weldon responded appropriately by immediately halting the Jesus banners. A Religious Right group, the Liberty Institute, got a 10-day restraining order on Sept. 20 against the district, which has hired a law firm to defend itself. FFRF is readying an amicus brief in support of the district."
FFRF Co-President Dan Barker called it "strange and surprising that the attorney general would weigh in prematurely on a case before a court in his state based on what 'news reports indicate.' He is failing to recognize the difference between free speech, such as what fans might say in the bleachers, and government speech, such as what cheerleaders in uniforms say as representatives of the school during school-sponsored events."
On September 27, the same day as the Attorney General's letter, the Liberty Institute issued a press release, lauding Abbott's characterization of FFRF. "Liberty Institute President Kelly Shackelford on behalf of Kountze High School cheerleaders and parents praised a letter by Texas Attorney General Greg Abbott, denouncing the Freedom From Religion Foundation's 'menacing and misleading' letter that led to the unconstitutional ban on student-made banners at Kountze ISD football games," Liberty's press release stated. "Abbott wrote in the letter, 'Contrary to the FFRF's claims, however, the Supreme Court has never ruled that religion must be 'kept out' of public schools."
Attorney General Greg Abbott again has proven that he is a friend of religious freedom in Texas and throughout the nation," Shackelford said. "We are thankful for his support of the Kountze cheerleaders' heroism in the face of this unlawful ban and censorship of student leaders' private religious speech."